Inscrutable Judges Hold the Balance

Albany arguments hold few clear clues; city argues more vigorously than state

Six members of the New York Court of Appeals heard argument May 31 in four same-sex marriage cases, but only four of them said enough to give rise to any kind of speculation about how they would vote in the case.

Based on their past voting patterns and views expressed in cases involving gay rights, amplified somewhat by their questions and comments during the oral argument (together with the identity of the governor who appointed them), one could cautiously suggest that Chief Judge Judith Kaye and Judge Carmen Beauchamp Ciparick, both appointed by Democrat Mario Cuomo, are the most likely members of the court to find that there is a constitutional violation in denying same-sex couples the right to marry.

And the most recent appointee to the court, Judge Robert S. Smith, appointed by Republican George Pataki, would be least likely to vote that way.

Kaye has consistently voted in favor of gay rights positions in her time on the court, frequently in impassioned dissent, and her opinions have shown an overriding concern for the human consequences of the court’s decisions. Although she was not an extraordinarily active questioner, her questions characteristically went more to factual than legal issues. Ciparick, who is one of the leading legal scholars of the court, appeared to be very receptive to arguments by the appellants, representing the gay and lesbian couples, that a fundamental right is implicated in the case, placing a great burden of justification on the government that would be difficult to meet.

Smith, the recent Pataki appointee, was the most active participant in the oral argument, peppering attorneys for both sides with questions and comments, and even engaging in some argument with them. He seemed the most openly skeptical about the idea that a statute passed in 1909 whose constitutionality had never been seriously challenged until recent years had somehow suddenly become unconstitutional, although there were several points during the arguments for the government, especially the feisty presentation by Leonard Koerner, New York’s chief assistant corporation counsel, when Smith posed challenges to the government’s case. Without having any personal experience of watching him in prior oral arguments, I don’t know whether he just enjoys playing devil’s advocate, the way U.S. Supreme Court Justice Antonin Scalia delights in doing, or whether some of his hardball questions reflected his own views. But on balance he seemed the most likely to affirm the Appellate Division decisions, which rejected the marriage claims.

The other Judge Smith, George Bundy Smith, a Cuomo appointee, provides the biggest puzzle. Most of his questions went to two points—whether the issue of deciding who can marry is more properly one for the Legislature than the court, and what the consequences would be were the court to rule in favor of the appellants. His repeated harping on these questions, posing them to attorneys for both sides, suggested that he was searching for a reason to avoid having to decide this case on the merits.

Based on his voting record on the court as a moderate and cautious voice, one suspects that even were he to find a constitutional violation, he might hesitate to preempt the Legislature in opening up marriage to same-sex couples. His questions and his track record might lead one to speculate that he would be more comfortable with a Vermont-type disposition, declaring a constitutional violation but throwing the ball to the Legislature for a solution, as the court has recently done in the Campaign for Fiscal Equity case—to poor effect. (The court found that the state public school financing system seriously shortchanges children but has not dictated a remedy to the Legislature or governor.)

Judges Victoria A. Graffeo and Susan Phillips Read, both Pataki appointees, asked few questions, and provided little basis for speculation, apart from their backgrounds as Republican Party activists. They seemed attentive to the arguments, but unwilling to signal much in the way of their own views.

Very much missed from this argument was Judge Albert M. Rosenblatt, who recused himself from the case, as Gay City News first reported, because of his daughter’s involvement as a lawyer advocating for same-sex marriage in cases pending in other states. Rosenblatt has occupied a centrist position on the court, and was widely seen as a potential swing vote in this case. His absence could result in a tie, which might be broken by the court designating an Appellate Division justice to review the record and the argument and cast a deciding vote.

This would be an unfortunate result, because participation in the argument and the chance to ask questions and probe the positions of the attorneys can have an influence on an undecided judge.

The appellants’ attorneys, Susan Sommer of Lambda Legal, Roberta Kaplan of Paul Weiss representing the American Civil Liberties Union plaintiffs, Richard Stumbar from the Ithaca firm of Bixler & Stumbar, and Terry Kindlon of the Albany firm of Kindlon & Shanks, divided up the main points of the argument among themselves, with Sommer and Kaplan reserving time to present rebuttal argument at the end, probably the most effective part of the presentation from both of them.

Those two attorneys, presenting the main constitutional points, labored particularly hard under the persistent questioning of Robert Smith, but held their own. Kaplan’s final minutes on rebuttal were particularly masterful in bringing the case together and making a crucial point that had not been previously articulated with such force—that the test of whether the state has even a rational basis for barring same-sex marriage (never mind a compelling one) really turns on whether there is any plausible reason to deny the rights and protections of marriage to the thousands of children being raised by New York same-sex couples.

On the government side, Leonard Koerner once again revealed why he is considered the ace appellate attorney for New York City. Although one could fault the merits of his argument at various points—especially his attempts to explain away the U.S. Supreme Court’s opinion in Turner v. Safley, which gives lie to the argument that the possibility for procreation provides the critical cornerstone of the public policy justification for how marriage is defined—he projected an authority and confidence built on long experience and extraordinary facility and preparation. He managed to present a hard-hitting argument without excessive indulgence in the more offensively heterosexist justifications usually advanced in these cases.

Indeed, Koerner’s performance made one regret that Republican Mayor Michael Bloomberg decided the city had to defend the marriage law in this case rather than oppose it, as it would have been much more gratifying to have Koerner arguing on the appellants’ side, and I’d bet he would have done a terrific job had that been his assignment.

By contrast, Peter H. Schiff from the State Law Department, seemed very much at sea. His boss, Democratic Attorney General Eliot Spitzer, is running for governor on a platform that calls for enactment of same-sex marriage, and so has been a reluctant defender of the statute. Schiff seemed to be struggling to come up with an argument, appearing to mark time without a coherent strategy, other than to refer to his agreement with Koerner on key points. Schiff sat down before his allotted time was up after a fair amount of fumbling around and saying nothing much.

Albany Assistant Corporation Counsel Patrick K. Jordan also had little to contribute to the argument, other than to point out that the city clerk there was bound to follow the state Health Department’s interpretation of the marriage law. Tellingly, Ithaca City Attorney Daniel Hoffman declined to appear, since his local government is on record in supporting the plaintiffs.

But this case really turns more on the intellectual honesty and commitment to constitutional equality of the judges than on the quality of arguments from counsel. There are enough published appellate decisions and dissents on same-sex marriage from other state high courts that each side could write their opinions without hearing any arguments. The ultimate issue here is what each judge thinks equality truly means, and what each judge thinks is the appropriate role of the court in confronting social change in the context of basic constitutional guarantees.

Bottom line?

Winning a ruling for same-sex marriage from this bench remains a bit of a stretch, and making predictions based on oral argument is a risky venture, especially when two of the six judges say very little, and another seems eager to avoid deciding the case entirely.

But hope springs eternal…